Khan v. Gilbey & Another (CIV APP 26 of 1963) [1965] SLCA 3 (15 March 1965)

THI!: AFntCAN LAW ll.EPOll.TS not give evidence or call witnesses. All the oral sworn evidence indicated his guilt and that his statements were untrue. In the case of R. v. Williams (2) there was a unanimous verdict convicting the appellant of a sexual offence against a girl of eight years of age-contrary to what was then s.6 of the Children's Ordin ance (cap. 31). There was no record of the summing-up. The West African Court of Appeal quashed the conviction. It could find no corroborative evidence implicating the appellant and the absence of any record of the summing-up made any other decision out of the question in the circumstances. We think that both those cases are to be distinguished from the present one, in which there was a unanimous verdict and in which no difficult questions arise and in which the evidence went to show clearly the applicant's guilt. We must not be taken as departing from what was said by the West African Court of Appeal in Wango's case as to the need for a judge who has no stenographer to adjourn for a while "to prepare a sufficient note of what he intends to tell the jury." We are however of opinion that in such a clear and one-sided case as this must have seemed to the jury there is no possibility that there has been a miscarriage of justice. The application is refused. Application refused. KHAN v. GILBEY and GILBEY CouRT OF APPEAL (Ames, P., Bankole Jones, C.J. and Dove-Edwin, J.A.): March 15th, 1965 (Civil App. No. 26/63) [I] Civil Procedure- appeals- matters of fact- trial by judge alone appellate court's duty to draw its own inference from facts proved or admitted: On appeal from a judge sitting alone, it is the duty of the Court of Appeal to make up its own mind, not disregarding the judg ment appealed from and giving special weight to that judgment in cases where the credibility of witnesses comes into question, but with full liberty to draw its own inference from the facts proved or admitted and to decide accordingly (page ,228, lines 2-8).

[2] Courts-Court of Appeal-matters of fact-appeal court may draw its own inference from facts proved or admitted: See [I] above.

KHAN v. GILBEY, 1964-66 ALR S.L. 216 C.A.

[3] Documents - deeds - conveyances - habendum-omission does not necessarily make deed ineffective: A conveyance of land which contains no habendum may possibly nevertheless have legal effect and even if it does not it may have some value in equity as an agree ment (page 222, lines 36-40). [ 4] Equity-fraud-standard of proof-fraud must be proved to a degree of probability commensurate with the occasion: A civil court considering an allegation of fraud does not require proof to so high a degree of probability as a criminal court would but it does require a degree of probability which is commensurate with the occasion and higher than it would require when asking if negligence is established (page 227, lines 28-34).

[5] Evidence-burden of proof-standard of proof-civil cases-fraud proof to a degree of probability commensurate with the occasion: See [5] above.

[6] Evidence-functions of court-appellate court-matters of fact-trial lS by judge alone-appellate court's duty to draw its own inference from facts proved or admitted: See [1] above.

[7] Land Law - conveyancing - deeds-habendum-omisson does not necessarily make deed ineffective: See [3] above.

[8] Legal Profession-transactions with client-advice of independent legal practitioner-practitioner's wife not an independent legal practitioner: Where it is necessary or desirable for a legal practitioner not to draw a deed which is to convey land to himself, it is unsatisfactory to call on his wife, herself a legal practitioner, to do so instead (page 220, lines 12-17).

[9] Tort-deceit-standard of proof-fraud must be proved to a degree of probability commensurate with the occasion: See [5] above. The respondents brought an action against the appellant in the

Supreme Court to set aside conveyances of a piece of land which SO they alleged the appellant had purchased fraudulently, for a declaration that the land was their property and for an injunction. The respondents bought a piece of land and after the vendor's death they employed the appellant, a legal practitioner, to negotiate the purchase of the rest of her property for them. Her personal 35 representatives sold them another piece of land by a conveyance prepared by the appellant. The personal representatives and their sister then sold a third piece of land to a third party who five days later sold it to the appellant. The conveyance to the third party was prepared by the appellant and the conveyance to the appellant 40 was prepared by the appellant's wife, herself a legal practitioner

THE AFRICAN LAW REl'ORTS practising at the same address as the appellant but not in partner ship with him. These two conveyances were the conveyances which the respondents sought to set aside in the action. The action was tried by a judge without a jury. The respondents 5 alleged and the judge found that the appellant knew that they had negotiated to buy the land the subject-matter of the two conveyances sought to be set aside. These two conveyances and the first con veyance contained no habendum and a fourth conveyance, whereby the personal representatives and their sister made a fresh conveyance 10 to the respondents of the land comprised in the first conveyance, was not signed by the respondents. The judge set aside all four con veyances on the ground that they were incapable of vesting the legal estate in the purchasers. This point however had not been argued before him and was not argued on appeal, and the sole issue 15 was whether the appellant had fraudulently purchased land which he knew the respondents had been negotiating to buy.

On appeal, the question before the court was whether there was sufficient proof that the appellant know the respondents had nego tiated to buy the land and that he had acted fraudulently. Cases referred to :

(1) Bater v. Bater, [1951] P. 35; [1950] 2 All E.R. 458, dictum of Denning, L.J. applied. 25

(2) Mersey Docks & Harbour Bd. v. Procter, [1923] A.C. 253; [1923] All

E.R. Rep. 134, dictum of Cave, L.C. applied. Barlatt for the appellant; C. N. Rogers-Wright for the respondents. AMES, P.: The road from Lumley to Coderich in the neighbourhood of the land which this appeal is concerned with is very near the sea shore. I shall call it "the road." 35 By a deed dated July lOth, 1953, one Metcalfe Theophilus Niger conveyed to Lucretia Macauley two parcels of land therein numbered 1 and

2. This deed is Exhibit H and I shall call the land parcel H No. I and parcel H No. 2 respectively. Parcel H No. I adjoins the road on its inland side and contain~ 2.8 acres. Parcel H No. 2 40 adjoins the road on its sea side and contains .88 of an acre, the sea being the boundary on one of its sides. A copy of the deed was

KHAN v. GILBEY. 1964-66 ALR S.L. 216 C.A. put in evidence as Exhibit B, to which the learned judge refers; but as we have the deed itself, I shall refer to that. Lucretia Macauley died on October 8th, 1959 intestate. On July 18th, 1960, Johnstone Besurdur Macauley and Williams Samuel Macauley, whom I shall call the two Macauleys, obtained letters of administration of her estate. By a deed dated October 28th, 1960, the two Macauleys con veyed, as personal representatives, to the respondents (who are husband and wife) a parcel of land containing 8.107 acres on the inland side of the road but not adjoining it. A certified copy of this deed is Exhibit A3 and I shall call the land parcel A3. (There are other parcels to be mentioned and I shall call them by the numbers given to the certified copies of the deeds when exhibited in evidence.) This deed does not contain a habendum clause but recites an agree ment for the sale of an estate in fee simple. The parcel is said to be "the remaining portion of that piece or parcel of land'' which is parcel H No.

2. Of course it cannot be any part of that; it is on the other side of the road. Parcel H No. 1 extended 680 ft. from the road inland. The nearest point of this parcel A3 to the road is about 450 ft. from it. It is not apparent from anything, documentary or oral, whether it includes a little of the most inland part of parcel H No. 1 and in my opinion it does not matter. This deed was executed by the two Macauleys and both respondents as well. The consideration was

By a deed dated February 9th, 1961, the two Macauleys and one Priscilla Edmund, who is said to be their sister, conveyed "by virtue of the said letters of administration being the persons entitled to and now possessed of' a parcel of land containing 8.774 acres to one John Michael Klitz. A certified copy of this deed is Exhibit A4. This parcel adjoins parcel A3 on the latter's inland side and beacons G3 to G8 of the latteis inland, and furthest-from-the-road, sides are also beacons of the former's nearest-to-the-road side. This deed also contains no habendum but it is clear that an estate in fee simple was intended. It also granted a right of way 25 ft. wide "along the western boundary of the remaining portion of land belonging to the vendors and situate on the southern side of the lands herein con veyed." The southern side is inland and further from the road. Where this right of way would lead to does not appear. The con sideration in this deed was £100. The parcel is also said to be a portion of parcel H No. 2, which also is impossible. Nor could it

include any part of parcel H No.

1. It is too far inland from the road. By a deed dated February 14th, 1961, John Michael Klitz con veyed this same parcel A4 of 8.774 acres to the appellant for a con sideration of £250. Again there is no habendum clause, but an estate in fee simple was intended. Again the parcel is said to be a portion of parcel H No.

2. A certified copy of this deed is Exhibit A5 and it and the last mentioned one are the important ones, and this parcel, which I will now call parcel A4 A5, the important one. The appellant was a legal practitioner in this country. He came here from Trinidad. He has since left. He prepared the deeds A3 and A4 and others to be mentioned later. His wife was also a legal practitioner. She practised at the same address as the appellant but they were not in partnership. She drew this deed A5. It may be desirable or necessary for a legal practitioner not to draw a deed which is to convey land to himself, but to call on his wife to do so instead scarcely meets the needs of the circumstances. I might here mention also that it was the wife of the appellant who obtained for the two Macauleys the letters of administration to Lucretia Macauley's estate. The appellant and the respondents were formerly good friends and the appellant lived in a house belonging to the husband res pondent. They quarrelled in or about January 1961. According to the respondents the cause was the appellant's having acquired parcel A4 A5, which they said should have been conveyed to them by the conveyance A3. According to the appellant the cause was a social matter of which he stated the details. The learned judge was "unable to accept the evidence of the [appellant] where it conflicts with that of the [respondents]." The husband respondent changed his solicitor and gave the appellant notice to quit. The appellant did so in May. After the quarrel and change of solicitor, by a deed dated April 6th, 1961, the two Macauleys and Priscilla Edmund conveyed to the respondents a parcel of land stated on the plan to contain 11.048 acres. This parcel adjoins parcel A3 at the latter's beacons G8, G9, G10, Gll and G12-and is in general west of it. The consideration was £150. A certified copy of this deed is Exhibit A2. It contains no reference to its being subject to any right of way for the owners of parc~l A4 and A5, the north-west comer of which is at beacon G8. This deed was drawn by the new solicitor. By a deed dated April 15th, 1961, the two Macauleys and Priscilla

KHAN v. GILBEY, 1964-66 ALR S.L. 216 C. A. Edmund conveyed to the respondents a parcel of land of unstated area which adjoins the respondents' parcel A2 on part of A2's southern side and the appellant's parcel A4 A5 on the latter's western and southern sides. Thus the appellant's parcel A4 A5 is now surrounded by land of the respondents except on its eastern side. A certified copy of this deed is Exhibit B2. The consideration was £250. It makes no mention of the right of way which was granted to the appellant's predecessor in title in Exhibit A4. This deed also was drawn by the new solicitor. A little later there is a deed dated August lOth, 1961 which was drawn by the appellant. Its certified copy is Exhibit Al. The parties are the two Macauleys and Priscilla Edmund, the vendors and the respondents, the purchasers. This is a second conveyance of parcel AS, which I shall now call AS Al. The appellant said that he was of opinion that Exhibit AS was faulty in that Priscilla Edmund should have been a vendor. The deed is signed by the vendors but not by the respondents. It purports to cancel the deed Exhibit AS. It omits the statement that the parcel was the remaining portion of H No. 2 which was stated in AS. The appellant built a house on his parcel A4 A5 which was finished in November 1961 and cost (so he said; no accounts pro duced) a little over £8,500. When saying so in the court below in July 196S, he also said that since November he had had to re-roof it at a cost of £1,750 and had spent £700 on the grounds and £1,500 on a road to it; but all or some of this may have been after this action was started. This action was started in January 1962 and the respondents' claim was, to put it briefly- (a) the setting aside of the conveyance Exhibit A4; (b) and also of the conveyance Exhibit A5; (c) a declaration that the 8.774 acres of parcel A4 A5 "belongs to and is the property of" the respondents; (d) an injunction to restrain the appellant from entering the land; (e) costs; (f) further relief as may seem just. The pleadings show the main points of their case to be, to put them briefly : (a) they had bought some land from Lucretia Macauley before her death; (b) upon her death they employed the appellant to negotiate and

so

1'HE AFRiCAN 1..AW REPORTS purchase from whoever were the proper persons to sell "the rest of the lands of Mrs. Macauley"; (c) this resulted in the conveyance of Exhibit AS of the 8.107 acres; (d) later on they discovered that the Macauleys' letters of ad ministration had been obtained for them by the appellant's wife, and also learnt about the transactions of Exhibits A4 and A5 con cerning the 8. 77 4 acres; (e) later too they learnt about the conveyance Exhibit AI which omitted the reference to parcel H No. 2; (f) the foregoing was a "transparent device" (para. 17 of the state ment of claim) whereby the appellant had perpetrated upon the respondents fraud (para. 18) and obtained for himself the 8.774 acres "the said remaining lands of Lucretia Macauley" which they had instructed the appellant to buy for them and which they thought, at the time, that they had bought, the appellant having assured them that they had. So the basis of the claim was not incompetence, mistake or negligence, but fraud. The action ended by the learned judge making an order setting aside not only the conveyances Exhibits A4 and A5 but also Exhibits AS and AI and directing that the file and the papers be sent to the Attorney-General for investigation by the Legal Practitioners' Dis cipinary Committee into the professional conduct of the appellant and of his wife also. This pleased neither side. The appellant made this appeal against it and the respondents have applied for a variation of it as follows : "(a) A declaration that the said area of land described in the said conveyance belongs to and is the property of the plaintiffs. (b) An injunction restraining the appellant from ... enter ing ... " The learned judge set aside the four deeds because he held that they were "worthless and incapable of vesting in the purchaser or purchasers mentioned therein the legal estate in the lands . . ." With all respect, there had been no argument as to whether or not the deeds had no effect; nor have we heard any. They were badly drawn, to say the least, but might possibly nevertheless have legal effect. Even if they did not, they might have some "worth" in equity as agreements. But this action was not concerned with that. It was about fraud and nothing else. Had the plaintiffs proved that

kttAN v. GILBEY, i964-66 ALR S.L. 216 C.A. the appellant's acquisition of the 8.774 acres of parcel A4 A5 was a transparent device to defraud them, as the statement of claim had it, and "a plan to deceive and secure for himself a portion of a piece of land which he knew the [respondents] had negotiated to buy from the estate of Lucretia Macauley," as the learned judge found it to be? This seems to me to be the crux of the whole matter. Did the appellant know? Did the respondents prove that he knew? First of all, how was the appellant supposed to know what land was to be conveyed to the respondents when he drew the conveyance Exhibit A3? The learned judge does not say. He does, however, say: "Before ... Lucretia Macauley died in 1959, the [respondents] were negotiating with her for another piece of land . . . be tween 16 and 18 acres, but before negotiations were concluded . . . Lucretia Macauley had died." I do not read the evidence like that. I read it as showing that the negotiations had fallen through on the question of price before she died and that they started again after her death. The learned judge went on: "The [husband respondent] said that he together with his wife had gone round this 16 and 18 acre piece of land with Lucretia Macauley before she died." And so they may have. The appellant did not go with them and no plan or notes were made. I have already noted that the learned judge was unable to accept the appellant's evidence where it conflicts with that of the respondents. So I will see what the respondents said on this point. The husband respondent said: "About the middle of 1960 we asked Mr. Khan to find out who were the personal representatives of the estate of Lucretia Macauley. . . . Mr. Khan arrived ... with ... Besurdur Macauley and ... William Macauley. . . . Myself and my wife in the presence of the [appellant] entered into negotia tions with the two gentlemen in 1960 and arranged to purchase all the land which Lucretia Macauley had shown us in 1957 for £500. I left the negotiations with my wife as I was busy up country .... " What was "all the land?" Apparently the husband respondent did not point it out to the appellant, because he said later on in his evidence : "I do not know if Khan knew the land I wanted to buy; but I did tell him that there were an estimated 16 or 17 acres of land there. . . I never went on the land with the Macauley brothers. . . . My wife told me that she had negotiated with